Hollywood Divorce Spotlight - Skinnygirl Frankel's Child Custody and Support Requests

As we have previously blogged, Bethenny Frankel, former star of The Real Housewives of New York, and founder of Skinnygirl Cocktails, recently filed for divorce from husband, Jason Hoppy. The parties have a daughter, age 2.



Reportedly, the parties' separated on December 23, 2012 and Frankel filed for divorce just shortly thereafter (LA Times) It appears from Frankel's Petition that she is requesting primary physical custody of the parties' daughter and child support payable by Hoppy, in addition to life insurance, exclusive occupancy of their home and medical, dental, vision and orthodontic care for her and the child. Sources estimate Frankel is worth at least $25 million. This begs the question: Is child support appropriate in cases where the custodial parent is an extraordinarily higher earner?

Under Family Code section 4053, "[I]n implementing the statewide uniform child support guideline, the courts shall adhere to the following principles:

(a) A parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life.
(b) Both parents are mutually responsible for the support of their children.
(c) The guideline takes into account each parent's actual income and level of responsibility for the children.

As such, regardless of Frankel's ability to support the parties' daughter, the court is tasked with ensuring Hoppy shares in that responsibility as well, pursuant to the statewide child support guideline. The guideline must account for both parents' actual income. In this case, CelebrityNetWorth.com reports that Hoppy has a net worth of $5 million himself, the majority of which he made as a high end New York real estate agent. His income must be considered in determining whether a support order is appropriate in this case.

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The statewide child support guideline is presumptively correct. If, under the statewide child support guideline, Hoppy is obligated to contribute to the support of Bryn, might he be able to somehow "rebut" the presumption? Could Hoppy perhaps show the court that he too has an extraordinarily high income such that presumed support would exceed the needs of the child, and in doing so successfully rebut the presumption?

Family Code section 4057 provides: "(b) [t]he [presumed child support award i.e. the guideline amount] may be rebutted by admissible evidence showing that...(3) The parent being ordered to pay child support has an extraordinarily high income and the amount determined under the formula would exceed the needs of the child." To date, no case has defined "extraordinarily high income" for purposes of this section. Rather, it appears to be left to the discretion of the judge to determine what level of income may qualify. A judge may consider the local economic conditions in his or her analysis. But, because under Family Code section 4053 as mentioned above, "children should share in the standard of living of both parents" (Fam. C. section 4053(f)), consider that the needs of a child are relative to the parents' income, even if that income is extraordinarily high.

It should be noted that before a judge can deviate from guideline child support, he or she must first calculate the guideline amount based, generally, on both parents' incomes and their respective time share with the child. Only after that is done can a court go on to make the necessary findings as to why a different amount should be ordered. (Fam. C. section 4056(a)).

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 today.

January is Peak Season for Divorces

January 14, 2013

January is commonly referred to as a "peak season" for divorces in Del Mar and throughout San Diego County. Although many parties file for divorce in January, their timing may be chosen for a variety of different reasons. Filing for divorce during the holiday season can cause tension within the family and significant hardship if children are involved. In an effort to avoid ruining the holidays for the children or the family, some parties put off filing until January.

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On the other hand, the holiday season can be a very stressful time for families causing the final straw in a marriage to break thus prompting a party to file for divorce. Making a decision to file for divorce is best done with a clear head. The holidays can be a time of chaos and tension and therefore may parties decide to "ride out" the holiday season and then re-evaluate whether they still wish to pursue divorce. In addition to the emotional and psychological reasons for filing for divorce in January, many practical explanations also exist.

As we have previously blogged, the date of separation can have a dramatic impact on the division of property. The timing of filing a divorce petition can be used as the date of separation for the parties depending on the particular facts of the case. If one spouse generally earns a significant year-end bonus or commission, it may be wise to delay filing a petition until after the first of the next year. Once spouses separate, all of their respective earnings and accumulations will remain their separate property. This is quite different than the default rule which states that all earnings and accumulations during marriage are considered community property and divided evenly. Although it is impossible to say how a year-end bonus will certainly be divided at the end of the dissolution process, waiting until after the payment is received to file for divorce may save significant litigation on the issue.

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The end of the calendar year generates a plethora of year-end financial statements. Depending on the finances in each case, the parties can receive year-end paystubs, W-2 statements, student loan statements, statements from any investment accounts, statements from any retirement accounts, etc. Gathering all of this updated financial information can help the divorce process move smoothly. Parties have the opportunity to gather bank statements, tax records, draw up budgets, request mortgage statements and credit card balances before filing. These statements will be utilized to prepare Income and Expense Declarations and Schedules of Assets and Debts. Separating at the beginning of a calendar year can represent a new beginning and clean break for the parties.

Don't settle for less when determining your rights. Please contact us if you are considering legal separation, divorce, or need advice regarding child custody matters.. Nancy J. Bickford is the only attorney in San Diego representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Call 858-793-8884 for a consultation appointment today.

Update - Ashton Kutcher Finally Files for Divorce

January 8, 2013


As we have previously blogged, Ashton Kutcher and Demi Moore separated nearly a year ago. However, neither party had filed for divorce, until now. Early on the parties claimed to be working out all of the details of their marital settlement before involving the court system in their divorce. Despite their year-long attempt at an amicable resolution, Kutcher filed for divorce shortly before Christmas. Media outlets speculate that Kutcher's new girlfriend, Mila Kunis, may have pressured him to file. This is based on the theory that Kutcher intended to give Moore time to heal from the couple's traumatic split and that Kunis could no longer handle letting Moore still have that much control. Besides the emotional implications involved, there are a few legal ramifications of filing for divorce that might have appealed to Kutcher and prompted him to finally take this step.

In California there is a mandatory six-month waiting period between when a spouse files for divorce and when the court has the ability to terminate his or her marital status. This means that if Kutcher intends to re-marry within the next year or so, filing a Petition for Dissolution of Marriage six months prior to that date would be necessary. Even if Kutcher and Moore agreed upon a final settlement of their estate and submitted their agreement to the court, they would still remain legally married until the six month waiting period had passed.

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Filing for divorce also has many financial implications. The timing of Kutcher's petition, shortly before Christmas, may not have been an attempt to hurt Moore around the holidays but instead, may have been done in the interest of financial security. Legally married couples can file "married filing separately". If Kutcher files "married filing separately" he will only report his own income, exemptions, deductions, and credits. Normally, there are significant disadvantages to filing "married filing separately", however it may be prudent to file separately if you are concerned about the potential liability for tax, penalties, and interest of your spouse.

Legally married couples can also file "married filing jointly". In this case, both spouses file one return together and report both of their income, exemptions, deductions and credits. This may be difficult in divorce proceedings where a party is non-cooperative. It is crucial to speak with a tax preparer in making this decision. By filing his divorce petition in December, Kutcher gave himself the option to use whatever method of filing works most to his advantage.

If you are contemplating divorce, please contact us. The Law Offices of Nancy J Bickford are also well versed in child custody, spousal support or alimony in San Diego, and property division. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Is her Divorce Putting Frankel's Skinnygirl Fortune in Jeopardy?

January 4, 2013

Another Housewife is getting divorced. Bethenny Frankel, creator of the Skinnygirl franchise, is divorcing her Husband Jason Hoppy after only two years of marriage. For months Frankel has been fighting rumors that the couple is splitting but she has finally confirmed that a divorce is on the horizon. Frankel released the following statement regarding the divorce, "It brings me great sadness to say that Jason and I are separating. This was an extremely difficult decision that as a woman and a mother, I have to accept as the best choice for our family."

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In 2008, Frankel agreed to join the cast of Bravo's The Real Housewives of New York. At that time, only four short years ago, Frankel had a "mere" $8,000 in her bank account. To Frankel, The Real Housewives was an opportunity for her to build her own brand and advertise her Skinnygirl line of alcoholic beverages. It seems as if her plan worked because currently Skinnygirl is the number one fastest growing spirit in the United States. In addition, Frankel is now also a best selling author with her own skin, clothing and health products. Further, Frankel received a $40,000 check for each episode of her reality show. Considering the size and diversification of Frankel's fortune, the first question surrounding her divorce is whether she will have to split everything with her husband. Because the Frankel and Hoppy signed an enforceable premarital agreement, all of Frankel's empire should be safe from division.

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A premarital agreement is an important tool that can be used to protect assets of ambitious entrepreneurs. As a default rule, under California community property laws, any earnings or accumulations of a spouse during marriage is community property. Thus, one of the main functions of a premarital agreement is to alter that default rule and order that any earnings or accumulations of a spouse during marriage remain that spouse's separate property.

A premarital agreement can be especially helpful for a spouse with big aspirations but without a significant fortune entering into the marriage. California community property laws protect all of a spouse's property that he or she had before marriage. Upon agreement or by their actions, parties can convert separate property to community property. However, as a general rule, a spouse's assets before marriage will be remain theirs in full post-separation. On the other hand, pursuant to the default community property rules, if a spouse creates a large franchise during marriage, this franchise is subject to equal division between the parties.

Please don't hesitate to contact us in San Diego if you would like to inquire regarding the divorce process in San Diego, have questions regarding child custody and visitation, or would simply like to set up a consultation appointment with Ms. Bickford. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884.

Kanye West Deposed in Kardashian Divorce

December 27, 2012

The divorce proceedings between reality star Kim Kardashian and athlete Kris Humphries have by far exceed the length of the couple's 72-day marriage. Recently, Kardashian's new boyfriend, rapper Kanye West, was deposed by Kris Humphries' lawyers. During a deposition, the deponent must answer a series of questions while under oath. This means that any lie told during a deposition may constitute perjury. Humphries' deposition of West may have been an attempt to invalidate his premarital agreement. Many speculate that the premarital agreement contained an infidelity clause and that Humphries is attempting to show Kardashian violated it by starting a relationship with West before the date of separation.

In response, Kardashian's lawyers argue that Humphries' postponed arguments to invalidate the straightforward premarital agreement is simply a delay tactic to draw out the divorce proceeding. Despite Humphries' alleged attempts to extend his litigation with Kardashian, the judge assigned to the case has set a trial date. The former couple will appear on February 15, 2013 and argue their case before the court. As long as the trial date is not pushed further back by Humphries' legal team, Kim Kardashian should finally get a resolution to her second marriage.

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Depositions are a common form of discovery in family law proceedings. Discovery is the process in which the parties can formally ask each other for documents and information in order to gather all relevant facts in the case. Although expensive, depositions can provide attorneys an opportunity to ask the parties and/or other witnesses for the information needed to proceed to trial or to negotiate settlement. Other forms of discovery such as special interrogatories are available to ask parties questions under oath. However, special interrogatories can be less effective than deposing a party because the lawyer is only permitted to ask follow-up questions after receiving a response. This question and answer process can continue for months because each party is entitled to 30 days to respond to interrogatories.

If discovery is not complete, and both parties do not have all the relevant information in a case, it is difficult for a court to rule or for the parties to reach a settlement. If the discovery process is drawn out such in the Kardashian-Humphries case, the entire dissolution process can take years to complete. Thus, it is important to retain a lawyer familiar with the discovery process and deadlines. Once a trial date is set by the court, such as in the Kardashian-Humphries case, discovery is subject to a cut-off date. After this date, no further discovery may be propounded.

Divorce can be a frightening and a daunting process. If you are considering a divorce from your spouse, a legal separation, or have questions regarding spousal support or child custody, please don't hesitate to contact us. Nancy J. Bickford is the only lawyer in San Diego representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights, call 858-793-8884.

Technology Fosters Cooperation in Modern Divorces

December 17, 2012

We have previously blogged about different ways technology can be used to gain an advantage or gather evidence in a dissolution proceeding. However, ex-spouses are now learning how to use the advances in technology to foster cooperation and harmony post-separation. Many divorcing couples would prefer to sever the ties between them completely after their divorce is final. This goal is unattainable for ex-spouses who will continue to share custody of minor children for years after separation. The new trend called "joint custody - at a distance" encourages splitting couples to communicate electronically rather than during "in person" exchanges in order to reduce the emotional tension during a "drop off" or "pick up".
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Many parents have found that they fight and argue less in front of their children if they are able to express their emotions through other outlets. E-mail communication, online calendars and a number of other online resources are all available to conflicting parties who share children. By sharing an online calendar parents can easily coordinate a child-sharing schedule. All of the child's activities and plans are readily available to view and change without any need for in-person or telephonic communication between the parents.

Our Family Wizard is a common solution for parents in conflict. A judge may order parties to use Our Family Wizard, a program which tracks all communication, expenses, and even sends notices to the parties regarding their obligations. Because the communication between parents can be supervised by the judge and attorneys involved in the case, the parties are incentivized to speak civilly to each other. This form of communication can take away the aggravation and emotional side of child-sharing and ease the tension and stress for the children involved. The program can be purchased for approximately $100 per year.

Another form of technology frequently appearing in custody orders is Skype. Skype is a free program that allows two or more people to have an online video conversation. In cases where both parties cannot easily see a child frequently, the court may order "Skype visitation". During a Skype visit, a parent can have a video conversation with the child. Skype also permits conversations to be recorded and can ensure that the visiting parent is getting enough video time with the child. Additionally, a parent may be ordered to purchase a cell phone for the child in order to avoid any telephonic communication between the parties. This way, if a parent wishes to speak to his or her child during the child's scheduled time with the other parent, he or she can reach the child directly.

Divorce
can be an intimidating and confusing process. If you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody or support, please don't hesitate to contact us. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights, call 858-793-8884.

Ariel Winter's Emotional Abuse

November 27, 2012

Domestic violence and child abuse are not limited to physical violence, but also include emotional abuse. Modern Family actress, Ariel Winter, has recently been named a victim in an emotional abuse scandal with her mother, Chrisoula Workman. Although Ariel's claims of physical violence were unsubstantiated by the Department of Children and Family Services ("DCFS"), DCFS did find evidence of emotional abuse. As a result of the DCFS findings, on November 20th, a judge ordered Ariel to remain in the custody of her adult sister, Shanelle Gray.

The DCFS report also contained recommendations for the 14-year-old Ariel's future care. According to DCFS, it is in Ariel's best interest for Ms. Gray to be awarded permanent guardianship. Workman's attorney, Anita Gumm, vehemently opposed the idea that Gray be awarded temporary or permanent guardianship of Ariel. Gumm argued that 34-year-old Gray is too young to act as guardian despite being old enough to have a family of her own. Due to Ariel's well-known role on the popular television show, Modern Family, Gumm also suggested that Gray was seeking guardianship over her for individual gain. Apparently the judge disagreed with Gumm's representation of Gray's motives since he awarded her temporary guardianship. A hearing on permanent guardianship has not been set.

In a case such as the Ariel Winter's case, the adult who becomes the guardian of an abused child does not necessarily need to be a family member. Any family member, friend, or other adult who knows the child may ask the court to become his or her guardian. Because Gray is Ariel's sister, the two girls likely share a close relationship that will make Ariel's transition away from her mother much easier.

As Ariel's guardian, Gray now has a number of important responsibilities. Guardians are responsible for the health care and education of the minor child. This means that, as guardian, Gray has the ability to make medical decisions for Ariel. Additionally, Gray may choose where Ariel attends school. This may be a complicated decision considering that Ariel is an actress on a hit television show. Although guardians have the right to make decisions for the minor child, the child's parents still remain responsible for financially supporting that child. If the guardian wishes to further sever ties between the child and his or her parents, the guardian may choose to provide financial support without help from the parents.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Legalizing Polygamy?

November 22, 2012

1215912_paper_chain_in_the_dark.jpgAs we have previously blogged, it is illegal in San Diego for any married person to marry anyone other than his or her current spouse. Polygamy describes a marriage between more than two people. TLC brought the spotlight to this mysterious form of marriage with its reality show Sister Wives. Sister Wives is a show about the Brown family in which one man is married to four different women. After the show aired, rumors spread that the authorities were investigating the Browns for polygamy. The thought of criminal prosecution for their lifestyle forced the Browns out of the State of Utah, where they were living, to Nevada where they believed they would be more easily accepted.

Although Utah authorities investigated the Browns, many people are speaking out against laws prohibiting polygamy. Polygamy is often linked to the Mormon faith, thus those who are speaking out against its prohibition cite laws protecting religious freedom. Those condemning anti-polygamy laws argue that the laws inhibit religious freedom in the same way that laws prohibiting contraception did.

Legally, polygamists argue that anti-polygamy laws violate the U.S. Constitution's Free Exercise Clause. The Free Exercise Clause prohibits the states from imposing restrictions on someone on the basis of the person's religious beliefs. The state may only impose a restriction if that restriction is necessary to achieve a compelling state interest. However, a law of general applicability, which only incidentally burdens religious practices, will not be subject to invalidation. Any state which prohibits polygamy defends this law by arguing that a compelling interest (protection of women and children) exists and that anti-polygamy laws are necessary to achieve that compelling interest.

Not all those speaking out support the movement to overturn anti-polygamy laws. In fact, some academics argue that polygamy is dangerous and harmful to all participants. They allege that in polygamist communities women are forced to marry early, rivalry sparks as new wives are added to the family, children suffer with limited resources to be shared in extremely large families and men are ostracized as they rival other young males. The supporters of the anti-polygamy laws are afraid that this type of legal movement would result in religious communities that are permitted to make their own sets of laws to live by.

The strength of the movement to overturn anti-polygamist laws has yet to be seen. With all of the recent changes regarding same-sex marriage throughout the United States, polygamy could be the new frontier for legal marriage evolution.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Dennis Quaid's Wife Files for Legal Separation

November 20, 2012

After eight years of marriage to the famous actor, Dennis Quaid's wife, Kimberly Buffington, recently filed for legal separation. In March of 2012 Buffington filed a petition for dissolution of marriage citing "discord or conflict of personalities" as the reason for the split. However, just three months after she filed, Buffington withdrew her divorce petition. The couple seemed to be working on their relationship when they celebrated their eight-year anniversary in Bora Bora. In her petition for legal separation Buffington requested joint legal and physical custody of the couple's twins. Additionally, Buffington asked the court to award her spousal support and order Quaid to contribute toward her attorney fees and court costs.

Quaid and Buffington recently moved to California from Texas. Although Buffington filed for legal separation, she reportedly intends to file for a full divorce once the six-month waiting period has expired. In California, only parties who have resided in the state for a minimum of six months may file for divorce in California family courts. Deciding to file for legal separation or divorce is an important decision. If a party files for legal separation, the court has the ability to make custody and visitation, support, and property division orders. Unlike in divorce proceedings, there is no requisite waiting period to obtain a legal separation.

In addition to the six-month residency requirement, there is also a six-month waiting period before the marital status of the parties can be terminated. This means that if the parties file for divorce and settle all disputed issues within a month, they still cannot be legally divorced for another five months. One strategy, which seems to be used here by Buffington, is to file for legal separation before the residency requirement is met in order to start the clock on the other six-month waiting period.

For the purposes of property division and support, the date of separation can be an important issue. Although Buffington filed for divorce in March, the date of separation will likely be much later due to the parties' attempted reconciliation. It is unclear when Buffington decided the marriage was over; however, two requirements must be met in order to establish a date of separation. First, the parties must live physically apart and second; at least one party must have the intent not to resume the marital relationship. Thus, any earnings and property acquired by either Quaid or Buffington during the attempted reconciliation will be deemed community property. As community property earnings and property will be split equally between the parties.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

What Could You Lose in a San Diego Divorce?

November 15, 2012

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In the 1950's it was common for a husband to be the breadwinner for his family and for a wife to stay at home to care for the children, but how much of that traditional stereotype persists today? In divorces, the traditional view of marriage creates assumptions such as "husbands are ordered to pay spousal support more often than wives" and "women are more often awarded custody of the children". A study conducted by the University of Michigan tends to show that these old traditions and stereotypical roles may still endure today.

According to the study conducted by the University of Michigan, each year approximately 115,000 women are left without health insurance following a divorce. Additionally, two years after their initial divorce, the health insurance rate for divorced women remains low. Many health insurance companies allow employees who receive health insurance benefits to claim their spouses as dependents for insurance purposes. This allows the employee to obtain health insurance on behalf of his or her spouse through his or her employer. However, upon divorce, employees are generally not permitted to claim former spouses as dependents. Therefore, any divorcé formerly covered by his or her spouse's health insurance must find new coverage.

The intriguing part of the University of Michigan study is that so many women, not men, are left without health insurance following divorce. Does this mean that men are typically still the breadwinners in modern marriages? The study also noted that even employed women had a difficult time maintaining health insurance through their employers. Because of the financial difficulties that can come with divorce, many women had to sacrifice paying health insurance premiums in order to pay for basic necessities.

As the traditional stereotype perpetrates, women tend to work part time jobs in order to be available to care for the children. These lower paying part time jobs tend not to offer health insurance. According to the study, the greatest population of women at risk for losing health insurance coverage is women in moderate-income families. This is because higher-earning women can afford to keep paying health insurance premiums in addition to household bills following divorce.

It still remains unseen how the Affordable Care Act will impact the trend of divorced women losing their health insurance coverage. The Affordable Care Act has a number of provisions specifically designed to provide assistance to women so it may counteract some of the damage of divorce.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Halle Berry International Move-Away Update

November 13, 2012

As we have previously blogged, Halle Berry is entrenched in a bitter custody battle with Gabriel Aubry. Berry and Aubry separated in 2010 and reached a custody agreement in 2011; however, the former couple's agreement did not suit Berry after she got engaged to Oliver Martinez. Berry intends to relocate to France with her new fiancé, Oliver Martinez, but requested the court's permission to bring her daughter along first. On Friday November 10th, the judge denied Berry's request to allow her daughter, Nahla, to move to France.

In determining whether to grant or deny a parent's request to move away with a child, the court must assume that the requesting parent will move regardless of the court's ruling. Although it is not generally reality, this presumption requires the court to consider if it would be in the child's best interest to maintain the same lifestyle or live further away from the moving parent. It is generally in a child's best interest to remain in the same neighborhood, attend the same school, interact with the same friends, and maintain as much stability as possible. This is because schedules and routines can help a child adjust to the separation of his or her parents. However, move-away cases present a more complicated scenario. The court must consider two alternatives: either the child will be uprooted from his or her current life or the child will remain in the same location without one of his or her parents.

The overriding concern in any move-away case is the best interest of the child. The judge in the Berry-Aubry case likely relied heavily on an independent custody report provided to the court. The report stated that Nahla had a close and meaningful relationship with her father. Thus, the court determined that it was not in Nahla's best interest to be separated from her father and reside primarily in France. In any San Diego custody and visitation case, the parties must attend mediation before the court will hear a custody and visitation motion. Generally, the parties will meet with a neutral at Family Court Services ("FCS"). If the parties cannot reach an agreement, the neutral will prepare a report, which will be filed in court. The parties may also agree to meet with a private mediator to negotiate custody and visitation issues. Private mediation is more expensive but can help the litigation process move more quickly.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Rental Income is Income Available for Support

November 8, 2012

673031_apartment_for_rent.jpgOften in San Diego divorces, both spouses are unable to maintain the same lifestyle they enjoyed while living together. The lifestyle of the parties during marriage is called the marital standard of living. The financial reality of divorce is that it is more expensive to sustain two separate households than it is to sustain one. Thus, divorce can lead to an adjustment in spending, entertainment and square footage.

Spousal support is a tool used by Family Courts to attempt to equalize the living situation of both spouses. This is especially true if one spouse forgoes the opportunity to work for many years in order to take care of his or her children. If one spouse is the breadwinner and the other maintains the home and the children, upon divorce, the breadwinner will be able to support the same lifestyle but this would leave the non-working spouse with no ability to support him or herself and the children. Thus, the court will order the breadwinner to pay support to the non-working spouse in order for both to maintain similar standards of living post-separation.

Spousal support is calculated, on a temporary basis, using a guideline formula. The formula requires lawyers and judges to input both spouses "income" that is available for support. For a W-2 employee, this calculation is basic. The only factor to consider when determining income available for support is the gross wages from the spouse's tax return or year-end form W-2. Some spouses however, have attempted to artificially deflate this income available for support by taking a reduction in salary and instead receiving housing or car allowance perks from their employer. If the court recognizes an attempt to artificially deflate income, it may impute the value of perks received by the spouse as additional income available for support.

As stated above, both spouses will likely not be able to maintain the same standard of living they both enjoyed together during marriage. One way to relive some financial burden is for a spouse to allow a roommate to move in with him or her. With the extra financial contributions of a roommate, the spouse will be able to afford a larger and/or nicer residence. According to Family Code section 4058, gross income available for support is defined as "income from whatever source derived." In County of Orange v. Smith, the court interpreted this code section to include rental income paid by a roommate. Thus, rental income paid by a roommate is properly considered as income available for support.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Oprah Winfrey, her Father's Divorce, and Evictions

November 6, 2012

Oprah Winfrey has become entangled in her father Vernon Winfrey's divorce. Vernon married his current wife, Barbara Winfrey, in 2000. Vernon's divorce papers contain allegations that Barbara engaged in "inappropriate marital conduct," which refers to an extramarital affair. In her response, Barbara accuses Vernon of violent outbursts including an incident where he chased her with a gun and threatened to pull the trigger.

During their marriage, the couple has enjoyed living in a $1.4 million dollar home in Nashville. The home is owned by a trust, which was created and funded by Oprah. Vernon filed for divorce in Franklin, Tennessee in June of 2012. As a result of the divorce process, the Davidson County Sheriff's deputies had an order to evict Ashley Williams, Oprah's stepsister, from the Winfrey marital residence. However, the attorney for the trust had the order rescinded. The relationship between Oprah and Barbara seems beyond repair; however, that tension does not seem to extend to Oprah's relationship with her stepsister.

According to the court papers, Barbara is seeking spousal support from Vernon and, although she pays no mortgage or rent, she claims her living expenses amount to $11,924 per month. Vernon claims that he has no financial ability to provide support to Barbara and, after bills each month, he is only left with approximately $282.33.

Unlike in California, Tennessee allows both "fault" and "no-fault" divorces. The no-fault grounds for a Tennessee divorce are: (1) irreconcilable differences and (2) spouses are not cohabitating and have lived in separate residences for at least two years. The fault grounds for a Tennessee divorce include: (1) either spouse has committed adultery (2) economic fault and (3) domestic violence. The Winfrey divorce papers seem to allege both adultery and domestic violence. Both parties deny the allegations against them and they may have been made to gain an advantage in the dissolution process. Economic fault can have a significant impact on the division of the marital estate.

In Tennessee, the court will consider sixteen factors when making an award of spousal support. Because it seems that the Winfrey's did not own much property, support will likely be the most litigated issue in their case. One of the factors considered by Tennessee courts is "the marital conduct of the parties during marriage." This is evidence of the fault aspect of Tennessee divorce law. In California, the only marital conduct that is relevant when setting spousal support is domestic violence. Extramarital affairs are irrelevant to the court's consideration of spousal support.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

My Spouse the Spy?

November 1, 2012

377795_binoculars.jpgAs we have previously blogged, technology is playing an important role in San Diego divorces. Often, spouses use social media sites such as Facebook to gather information about their spouse to be used in the dissolution process. However, some spouses are taking the use of technology to a whole new level. Danny Lee Hormann did not simply peruse his wife's Facebook when he suspected her of cheating. Instead he installed a gamut of spy equipment in the family home, on the family computer, on his wife's cell phone, and in his wife's car.

Michele Mathias, Hormann's wife, became so worried that her husband was spying on her that she and their children searched the family home for recording devices and held whispered conversations on the lawn. Mathis argued that it was not only her family's privacy that was invaded, but the privacy of every person who sent her a text message or used her computer was compromised as well. The police pursued criminal charges against Hormann for stalking and he was sentenced to thirty days in jail. According to Hormann, when others hear his story they reply that they would have done the same thing.

This type of spying and information gathering results in the collection of more private information in a short period of time than the discovery process may ever be able to gather. However, many lawyers are questioning the legality of this behavior and what information, if any, can actually be used as evidence in a dissolution case. Under the U.S. Constitution, we all have a "reasonable expectation of privacy." This expectation of privacy is reduced in certain instances such as when a person is in public. Spying spouses have begun to argue that there is no reasonable expectation of privacy in a marriage.

Various states have begun to hear cases on this subject. In Nebraska the court determined that embedding a listening device in a teddy bear violated the Federal Wiretap Act. In Iowa, the court found that a spouse's privacy is violated if his or her spouse installs a camera in the marital bedroom. However at least five of the thirteen federal courts have determined that the Federal Wiretap Act does not prohibit marital surveillance. Only two have ruled to the contrary.

Although it is still unknown whether evidence obtained this way would be admissible in a dissolution proceeding, such spying can lead to criminal charges if it is done to harass or intimidate. In Del Mar and throughout San Diego County, depending on the facts of the case, this type of spying may lead to allegations of domestic violence and a domestic violence restraining order.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Demi Moore and Ashton Kutcher's Divorce Battle

October 30, 2012

Demi Moore, 49, and Ashton Kutcher, 34, garnered an enormous amount of media attention when they married in September of 2005. The spotlight continued to follow the couple when rumors of Kutcher's infidelity began to spread. Allegedly, Kutcher cheated on his wife with two party girls Brittney Jones and Sarah Leal. Regarding her husband's infidelity, Moore released the following statement "as a woman, and a mother and a wife, there are certain values and vows that I hold sacred, and it is in this spirit that I have chosen to move forward with my life."

Moore and Kutcher are taking an interesting approach to the divorce process. Although the couple split in 2011, neither party has filed a divorce petition. Rumors have now spread that Moore and Kutcher were never legally married. However, the more likely explanation is that the couple is attempting to reach a settlement before a petition for dissolution of marriage is filed. It seems the former couple cannot agree on how to split up the enormous $290 million fortune they amassed. Unlike in the Brand-Perry divorce, Kutcher and Moore have earned a relatively similar amount. According to reports, Moore is worth $150 million while Kutcher is worth $140 million.

Under the California Family Code, the court must divide the community estate equally. The community estate consists of all earnings and accumulations acquired by either party during marriage. It does not however include property held before marriage or acquired during marriage as a gift or inheritance. Thus, the court will only be permitted to divide the money earned by both parties during the marriage.

Additionally, the existence and validity of a premarital agreement may affect the outcome of the property settlement. According to reports, the parties did sign a premarital agreement. However, it appears that Moore is still arguing for her share of Kutcher's wealth due to his public infidelity. If the premarital agreement was well-crafted, Moore may have an extremely difficult time getting it overturned in court. If Moore and Kutcher cannot come to an agreement regarding the division of the marital estate, they will have to put their finances in the hands of a judge.

Although Kutcher's public infidelity humiliated Moore, California is a no-fault state. A California Family Court judge will not take into consideration Kutcher's romp with two party girls when he or she divides the Moore-Kutcher community estate.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.